Decision on piecework provisions a relief for farmers

Yesterday, the Federal Court of Australia handed down its decision in the matter of Fair Work Ombudsman v Tao Hu & Ors, a civil prosecution the Fair Work Ombudsman (Ombudsman) commenced against a labour hire operator and a Queensland mushroom grower.

With the support of the Australia Farmers Fighting Fund, the NFF intervened in the proceedings to ensure that the piecework provisions of the Horticulture Award 2010 were applied correctly.

In line with the NFF’s position, Justice Rangiah found that the piecework rate should be based on a proper examination of the productivity of a hypothetical ‘average competent worker’ within the circumstances of the workplace.

The court also rejected the Ombudsman’s contentions that:

· • An employee on a non-compliant piecework agreement does not, thereby, cease to be a pieceworker.

· As long as the pieceworker remained on a non-complaint agreement the employer was engaging in an ongoing breach of the Award.

· The growers were complicit in the labour hirer contractor’s contravention of the Award.

Unfortunately, while the Justice Rahgiah “recognize[d] the force of the [NFF’s] submission that this construction produces an inconvenient outcome for employers….” he decided that employers would need to adjust agreements when working conditions changed.

Nonetheless, NFF President Fiona Simson said the decision was a victory for common sense and would assist farmers to understand their obligations under the Award.

“We’re pleased that the court recognised that the unique features of each farm business are the key issues in determining the piece rate, and that commons sense prevailed when it comes to what happens when the piecework agreement is non-compliant.

Ms Simson said while determining the correct rate may require time-consuming monitoring of actual working conditions and the making of changes to rates to reflect these conditions, the decision provided the sector clarity as to the way the piecework provisions should operate.

"It should come as a relief to those farmers who have already had to deal with some of the most demanding and cumbersome labour laws in the world, and who are regularly hit with increased costs without equivalent productivity gains," Ms Simson said.